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PRIVATE CITIZEN'S PROPOSAL 



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NORTHERN AND SOUTHERN STATES. 



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A PRIVATE CITIZEN'S PROPOSAL 

FOR THE 

SETTLEMENT OF ALL DIFFERENCES 

BETWEEN THE 

i;ort!jtnt aiiir ^aiitljcrii plates. 



The day of declamation is past. It is high time that action 
should take the place of words. Meetings with long lists of 
distinguished names ; speeches, however eloquent and patri- 
otic to audiences long ago convinced of the truth of every 
word which falls from the lips of the orators ; resolutions re-as- 
serting the adherence by the minority to political doctrines 
the converse of those which have been affirmed by the ma- 
jority in the recent election, and addresses assuring our 
Southern brethren of what that minority would do if they 
had the power which they have not, are but ill suited to the 
present crisis. What is imperatively needed is a practical 
solution of the difficulty, to the support of which the mode- 
rate and conservative men of all parties can rally, and upon 
which they can concentrate their strength, instead of fritter- 
ing it away in discursive and never-ending argument and 
recrimination. 

This paper shall, as far as practicable, conform to the above 
suggestions and confine itself to stating points, leaving to its 
readers the opportunity and the task of filling up the argu- 
ment, in support of or against, each text which it contains. 




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2 

"What characteristics should such a project unite within it- 
self to the greatest possible extent? 

1. The course of proceeding for the settlement of the diffi- 
culty should be sought, if possible, within the Constitution 
itself. 

2. The object being to establish a rule for the government 
of the country upon a subject as to which irrecoricileable 
differences of opinion exist ; upon which public men have 
committed themselves ; which were directly in issue in the 
recent election ; and the one party having but just emerged 
from that contest flushed with victory, and the other smarting 
under defeat ; the mode of settlement should be such as to 
humiliate neither, to require no mortifying concession of 
wrong or mistake, to wound no one's self love, to save the 
honor of all. 

3. It should be such, that while members of Congress and 
of State Legislatures feel convinced that they sacrifice no 
constitutional right, but render good service to their country 
in voting for it, the fear of being held to account by their 
constituencies for a seeming abandonment of any portion of 
the party creed, may not deter them, 

4. It should be such as to still, in the shortest possible 
time, the present angry tempest of agitation and excitement, 
and remove the discussion at once from the arena of politics. 

5. It should be the best adapted to arrive at the right and 
the truth of the questions at issue. 

C. It should be a final and lasting settlement, leaving no 
loop-hole for the re-opening of the controversy, upon any of 
the points now under discussion. 

7. It should leave those who have recently made their ad- 
vent to power to administer the government, should proscribe 



no one for his past political opinions, but should open the 
door for the immediate reconstruction of parties upon the 
basis of the Constitution, and of the final settlement of the 
questions which, for the first time in our history, have un- 
happily divided them by geographical lines. 

8. It should be such, that if defeated on the floor of Con- 
gress by the machinations of extreme party leaders on one 
side or the other, or on both combined, an appeal may be 
taken to the whole country with a confidence of success. 

If such differences, aff'ecting their respective rights, existed 
between individuals, an umpire or the courts of law would 
have to decide between them. After the decision of an 
appeal to the highest court, the defeated suitor might grumble 
for awhile, and complain that the judgment ought to have been 
the other way, but his mutterings of dissatisfaction would 
become fainter and fainter, and he would be obliged to ac- 
quiesce in the decision which barred further litigation. If it 
were a quarrel between States not united by a federal com- 
pact, and negotiation failed, and they could not agree to ar- 
bitrate, an appeal to arms would be the only remedy. 

The questions at issue between the States of this Union are 
all questions of law, as to the construction to be given to the 
Federal Constitution. They may be stated as follows: 

1. Does the Constitution recognise slaves as property? 

2. Does it confer the right of holding slaves in the territo- 
ries? 

3. Does it confer on Congress the power of legislating in 
favor of or against slavery in the territories ? 

4. Can the territorial legislatures, under the Constitution 
of the United States, legislate on the subject of slavery? 

5. Can Congress, under the Constitution, require, as a con- 



dition of admitting a State into the Union, that its Constitu- 
tion should prohibit shavery ? 

6. Has Congress any power, under the Constitution, to pro- 
hibit or restrict the traffic in shaves between the several States 
in the Union ? 

7. What, if any, right of transit or sojourn, under the Con- 
stitution of the United States, has a master with his slaves 
through or in those States, which, by their Constitutions, do 
not recognise slavery ? 

8. Has Congress power, by the Constitution, to abolish 
slavery in the District of Columbia, or in the forts, arsenals, 
navy or dock yards of the United States? 

9. Are the laws which have been passed in some of the 
Northern States, imposing restrictions upon the execution of 
the fugitive slave law repugnant to the Constitution of the 
United States, and if so, which of them and to what extent? 



^5 



10. Are the laws of any of the Southern States, subjecting 
free negroes serving as mariners on board of vessels coming 
from Northern States, to imprisonment while remaining in 
tijeir ports, repugnant to the Constitution? 

It is believed that this is a tolerably accurate summary of 
the questions at issue, and from their statement it will be 
geen how idle it is to suppose that they can be ever finally 
disposed of by the votes of parties at the polls. No such 
mode of settlement is authorized by the Constitution, and 
however strong the majority adhering to the one construction 
or the other which may be obtained by either party at any 
given time, the other is at liberty to renew the struggle as 
often as the opportunity presents itself, and to contend that 
its rights are not concluded by the decision of its adversary 
in its own favor. 

Tiic Constitution has erected an arbiter within itself for the 



decision of all such questions, and it is not a little surprising 
that neither the president, who in his recent message an- 
nounced Iiis failure, after diligent search, to find any provi- 
sion authorizing a portion of the States to make war on the 
others, nor the thousands of readers of his message who ex. 
claimed against the failure to find it, discovered the wise and 
humane reason and purpose of the transparent and intentional 
omission. 

It is because the Constitution contains within itself such 
full and ample provision for the redress of all grievances 
which any of the States can sufi'er from the others, that while 
due attention is paid to its provisions, no recourse to arras 
can ever become necessary :— and as often as we consult that 
sacred charter and bulwark of our liberties, it develops and 
unfolds fresh evidences of the wisdom and far reaching sa- 
gacity of its framers, which should make us hesitate long, be- 
fore we change a single word of its provisions, lest in our 
short sightedness we should mar the fitness and adaptation of 
its several parts. 

By the Constitution, original jurisdiction of all controver- 
sies between States is conferred upon the Supremo Court of 
the United States. It is believed that without any legislation 
by Congress, any of the States could commence a suit at once 
in the Supreme Court of the United States, making all the 
others parties, and calling for a construction by the court of 
the Constitution upon all the questions as to which controver- 
sies now exist. We have become so accustomed to having 
constitutional questions dragging their weary and toilsome 
way along from some inferior tribunal in a remote county of 
a State, in a suit between private citizens, up to the court of 
final appeal, that we have almost forgotten that it was not 
necessary, to say nothing of its being highly inimical to the 
orderly and conclusive settlement of the questions involved, 
that they should take that course. The records in such cases 
are invariably made up in a very loose and inartificial man- 
ner, and there will always be some loophole for the defeated 
and dissatisfied party to say, that the question decided was not 
fairly presented, and that the decision was obiter. Such has 

1* 



6 

been the excuse for not acquiescing in the Dred Scott deci- 
sion ; and something similar will probably be alleged against 
the conclusiveness of any decision which may be finally pro- 
nounced in the Lemmon case, if it should reach the Supreme 
Court. 

Not so, however, in a suit originally commenced in the 
court of ultimate resort, with States for suitors, and the first 
intellects in the land as counsel, for a direct construction of 
the provisions of the Constitution. 

As the Constitution stands, congress has power to confer 
upon the Supreme Court jurisdiction of any suit commenced 
by the United States of America as plaintifi", but has not yet 
exercised that power. The court, beyond a doubt, already 
possesses the jurisdiction, by the Constitution itself, where 
the defendant is a State. The federal government, under the 
name of the United States of America, is the trustee and 
agent of the several States, for the exercise of the powers 
ceded by them by the Constitution. The commencement of 
a suit by a trustee, under a deed or will, for the purpose of 
obtaining a construction of the provisions of the instrument, 
to guide him in the administration of the common property, 
and making all the cestuis que trust parties, is a practice fa- 
miliar to every law3^er. The Constitution, in this case, is the 
deed of trust. The United States of America, in its corporate 
capacity, is the trustee. The several States are the cestuis que 
trust. 

In addition to this, much dissatisfaction has been created by 
the repeal of the Missouri Compromise, of 1820, and fears 
have been openly expressed that cff'orts would be made by 
the Southern States to re-open the slave trade. The Missouri 
Compromise, as an act of Congress, has been adjudged to be 
unconstitutional by the Supreme Court, and its repeal only 
gave efl'ect to that decision, butitsreenactmeut as an amend- 
ment to the Constitution, would be entirely valid. If the Su- 
preme Court should now decide that slavery can have no legal 
existence in the territories under the Constitution, the repeal 
of that compromise would be a gain to the ITorthern States. 
If, on the contrary, it should be decided that Congress has no 



constitutional power to legislate against slavery in the terri- 
tories, the re-adoption of the former Missouri Compromise, as 
an amendment to the Constitution, would be a concession by 
the Southern States. It is therefore proposed, that they should 
agree in advance to concede this in that event, and not ask 
the converse concession of the admission of slavery south of 
the compromise line from the l^orthern States, ii they Bhould 
be adjudged to be right in their construction of the Constitu- 
tion, and that they should also concede an amendment pro- 
hibiting for ever the re-opening of the slave trade. 

It is proposed, therefore, that Congress should pass an act 
to the following effect : 

An Act to facilitate the settlement of the controversies pend- 
ing hetween the several States, through the exercise of the 
jurisdiction corf erred ly the Constitution on the Supreme 
Court of the United States^ and recommending certain 
amendments to the Constitution : 

Sec. 1. Be it enactedhy the Seriate and House of Represen- 
tatives of the United States of America, in Congress assem- 
Ued, That it shall be the duty of the Attorney-General of 
the United States to commence, with the least practicable de- 
lay, in the Supreme Court, a suit in the name and behalf of 
the United States of America as plaintiff, and making all the 
several States of the Union defendants, for the purpose of ob- 
taining a construction of the Constitution of the United States, 
upon all the questions in controversy between the several 
States of the Union, or any two or more of them, arising out 
of, or connected with, the existence of slavery or involuntary 
servitude, within the United States, or any of the territories 
thereof, and to prosecute the said suit to a final decision, with 
all diligence and speed consistent with the due and orderly 
conduct of the proceedings. 

Sec. 2. And he it further enacted, That the Supreme Court 
of the United Slates shall have original jurisdiction of such 
suit commenced by the United States of America, and of all 
other suits which may hereafter be brought by the United 



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States of America as plaintiif, and in which any of the States 
of the Union may be defendant. 

Sec. 3. And he it further enacted, That it shall be the duty 
of the Attorney-General to give immediate notice of the com- 
mencement of such suit to the Governors of the several States, 
in addition to the ordinary service of process, and to cause 
the same to be accompanied by an aulhenticated copy of this 
act ; and the several States of the Union are hereby invited 
and earnestly recommended to make immediate }.)rovision for 
their projjer representation in such suit, and to take such 
measures as may conduce to its speedy determination, and, 
by public and solemn act of their respective legishitures, to 
pledge the faith of the States respectively, in advance, to 
ratify the judgment of the court as amendments declaratory 
of the construction of the Constitution upon the questions so 
in controversy, except in so far as such judgment may declare 
the invalidity of any State laws, and as to those, to repeal 
any statutory provisions so declared invalid, and also to ratify 
the amendment to the Constitution contingently recommended 
by this act, upon the happening of the contingency contem- 
plated, and also to ratify the other amendments to the Con- 
stitution hereby recommended, upon receiving official notice 
of the judgment of the court. 

Sec. 4. And le it further enacted, That the Supreme Court 
shall hold an extra session for the hearing of the said cause, 
at such time as it may appoint for that purpose, and shall 
have power to adjudicate, by its judgment, upon the proper 
construction of the Constitution as to the powers and duties 
of the general government, and of the territorial legislatures, 
in connection with the whole subject of slavery or involuntary 
servitude, and also upon the validity or invalidity of any of 
the laws of any one or more of the several States, relating to 
or connected with the subject of slavery or involuntary servi- 
tude, or the rights accorded to, or restrictions imposed upon, 
free persons of color within their respective limits, which, in 
any of the pleadings filed on the part of any other State, may 



be alleged to be invalid, as being repugnant to the Constitu- 
tion of the United States. 

Sec. 6. And he it further enacted^ That, for the purpose of 
greater convenience, the decision of the court upon all the 
questions submitted to it shall be in the form of resolutions, 
to the end that, upon being ratified by the legislatures of the 
requisite number of States, they may have the force of amend- 
ments declaratoiy of the construction of the Constitution. 

Sec. 6. And he it further enacted^ That if, by the judgment 
of the court in the said suit, it shall be declared that slavery, 
or involuntary servitude otherwise than in the punishment of 
crimes, can have a legal existence in the territories of the 
United States, then that the following article be proposed to 
the legislatures of the several States, as an amendment to the 
Constitution of the United States, to be valid to all intents 
and purposes, when ratified by three-fourths of the said legis- 
latures, as part of the said Constitution, viz. : 

ArtiaU in addition to, and amendment of the Constitution 
of the United States of America, proposed hy Congress, and 
ratified hy the Legislatures of the several States , pursuant 
to the fifth article of the original Constitution. 

AiiT. . In all the territories of the United States which 
lie north of thirty-six degrees and thirty minutes north lati- 
tude, not included within the limits of any State, slavery and 
involuntary servitude otherwise than in the punishment of 
crimes, whereof the parties shall have been duly convicted, 
shall be and are hereby for ever prohibited : Provided always, 
that any person escaping into the same from whom labor or 
service is lawfully claimed in any State or territory of the 
United States, may be lawfully reclaimed and conveyed to 
the person claiming his or her labor or service as aforesaid. 
And provided further, i\\Q.t nothing herein contained shall 
be construed as impairing or afifecting any right of sojourn 
or transit of a master or mistress with his or her servant or 



10 

servants, now enjoyed by force of tlio Constitution, or any 
present or future amendment thereof. 

Sec. 7. And he it further enacted, That tlie following arti- 
cles be also proposed to the legislatures of the several States, 
as amendments to the Constitution of the United States, both 
or either of which articles, when ratified by three-fourths of 
tiie said legislatures, shall be valid to all intents and purposes 
as part of the said Constitution, viz. : 

Articles in addition to, and amendment of, the Constitution 
of the United States of America, proposed hy Congress and 
raffed Vij the Legislatures of the several States, pursuant 
to the fifth article of the original Constitution. 

Art. . The migration or importation into the United 
States, or any of the territories thereof, from any foreign 
country, of persons to be held to slavery or involuntary ser- 
vitude, is for ever prohibited, and no person hereafter migrat- 
ing or imported into the United States, or any of the terri- 
tories thereof, from any foreign country, shall be held in 
slavery, or involuntary servitude, except in the punishment 
of crimes on due conviction thereof. 

Art. . No amendment of articles [stating by their num- 
bers those re-adopting the Missouri Compromise, the resolu- 
tions of the Supreme Court adoj)tcd as declaratory amend- 
ments, and the one prohibiting the re-opening of the slave- 
trade] or of this article shall bo valid, unless adopted by the 
unanimous consent of all the States. 

One single observation as to the amendment last proposed. 
It is obvious that it would essentially promote the cause of 
freedom in any territory left open to the admission of slavery 
by the settlement, and its gradual extinction in the border 
Slave States, by removing for ever all necessity and induce- 
ment for tlie Slave States to struggle to maintain the balance 
of power between themselves and the Free States. 



11 

Such do we conceive to be the advice which any sound 
practical lawyer would give to his client, who should call 
on him and tell him, that he and his brothers and sisters dif- 
fered in the construction of their father's will, and who, upon 
turning to tlie instrument, should find that room for an honest 
diversity of opinion existed. If the client should turn upon 
him and say, I have reason to fear that the present judges 
of the court are against me upon some of the points in dis- 
pute, and as I have considerable political influence in my 
district, I would rather wait until the terms of the present 
judges expire, and I can get my former counsel, Messrs. 
Smith, Jones and Brown, elected in their place, who have 
taken fees from me for their written opinions that I am right, 
the counsel consulted, if he were worthy of his ofiice, would 
feel, that any attempt to reach the finer chords which vibrate 
in the bosoms of honorable men, would be in vain with such a 
subject, and would close the discussion. This article is not 
addressed to those who will make such a reply, much less is it 
to those, if any such there be, who believe that the present 
judges of the Supreme Court of the United States are not 
pure and patriotic men, placed by their position above the 
reach of the waves of party, as most of them are, by the 
length of time during which they have already held their 
seats on the bench, from any charge or suspicion of having 
been appointed with any reference to the questions now dis- 
tracting the country. 

December 17th, 1S60. 

POPULUS. 



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